Canada’s cold proposal for free speech

Joshua Senneker, an activist and a member of First Baptist Church in Calgary, Alberta, has spent the past month calling up Christian pastors and lay leaders across Canada. The 25-year-old hopes to rouse opposition to a new bill he calls a “grave threat”: Bill C‑9, the Combatting Hate Act.

Senneker is working along with OnGuard Canada, an initiative of the Ontario-based Christian Impact Network, to spread the word. In a recent livestream, OnGuard Canada rallied about 900 Christian leaders from across the country. Speakers in the livestream included Senneker, Member of Parliament Andrew Lawton, Christine Van Geyn from the Canadian Constitution Foundation, Christian activists, and other policy influencers who encouraged participants to contact members of Parliament about the bill.

Bill C-9, introduced on Sept. 19, has been postponed and is now scheduled for review by the House of Commons Standing Committee on Justice and Human Rights. The committee’s work on the bill is expected to resume when Parliament returns from break on Jan. 26.

Since its introduction, the bill has raised concerns among Conservative members of Parliament, civil liberties groups, and religious organizations. If passed, it would increase the potential penalties for hate crimes and remove the requirement for attorney general consent in hate crimes prosecutions. Particularly concerning is an amendment—backed by the Liberals and Bloc Québécois and now passed within committee—that proposes to remove from Canada’s Criminal Code a legal defense for speech made in “good faith” and based on religious belief or religious text.

Removing the religious defense, Senneker says, would give prosecutors much broader discretion to bring hate speech charges. According to OnGuard Canada, Bill C-9 could criminalize speech about Biblical views on marriage, gender, sexuality, and the sanctity of life.

“As Christians, we know that there are many things that we believe that the world would consider hateful,” Senneker said. “If you remove the protection for religious individuals, whatever a prosecutor deems to be hateful will be used against Christians.”

Minister of Justice and Attorney General of Canada Sean Fraser, who formally introduced the bill, said at a Dec. 9 news conference that legislation would not “criminalize faith” and “in no way, shape, or form prevent a religious leader from reading their religious texts.” But critics have cited Minister of Canadian Identity and Culture Marc Miller’s comments when chairing an Oct. 30 committee meeting that “Leviticus, Deuteronomy, and Romans” had “passages with clear hatred towards, for example, homosexuals.”

“We already have from the Liberals a sign that they do believe that sometimes quoting Scriptures should subject someone to criminal charges,” said Andrew Lawton, a member of Parliament for Elgin–St. Thomas–London South who serves on the Standing Committee on Justice and Human Rights. He added that the bill “targets the very communities it claims to be protecting.”

The bill would make it a crime to intimidate or obstruct people from accessing places of worship or places used by minorities or other protected groups. It would also create a new offense for public display of the Nazi swastika or symbols associated with terrorist entities.

Currently, Canada’s existing hate speech laws criminalize “every one who, by communicating statements, other than in private conversation, willfully promotes hatred against any identifiable group.” The country’s criminal justice system defines “identifiable group” as “a group distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability.”

Christine Van Geyn, litigation director at Canadian Constitution Foundation, said while hatred is also considered as an aggravating factor in sentencing, Bill C-9 proposed to treat hate crime as a standalone offense. She warns this could allow it to be stacked onto existing offenses, creating “the risk of overcharging” with significantly higher criminal sentencing. By removing the requirement for attorney general consent, Bill C-9 also invites “arbitrary or inconsistent enforcement,” Van Geyn said.

The Canadian Constitution Foundation has recommended, as have Conservatives, that legislators withdraw the bill completely. But Lawton said that if the bill passes, the Conservatives will propose an amendment aimed at “undoing the changing definition of hate.”

While Canadian law did not originally codify a definition of hate, courts follow Supreme Court precedents, including R. v. Keegstra (1990) and Saskatchewan v. Whatcott (2013). In a Nov. 4 statement to the standing committee, Van Geyn wrote that R. v. Keegstra defined hatred as an “emotion of an intense and extreme nature that is clearly associated with vilification and detestation.”

Including words like “extreme” and “intense” helped safeguard the courts from wrongly inferring statements they found personally offensive. But Bill C-9 defines hate merely as an “emotion that involves detestation or vilification and that is stronger than disdain or dislike,” lowering the threshold for what constitutes hate.

“Even if the government is saying today, ‘Our intention of this law is not to criminalize Scripture,’ the court interprets the text of the bill,” Van Geyn said. “To put in the hands of politicians ancient Scripture pulled from out of context is not an appropriate or constitutional thing to do.”

The LGB Alliance Canada, a nonpartisan group that promotes rights for lesbian, gay, and bisexual people, has also criticized Bill C-9. Morrigan Johnson, a researcher at the alliance, wrote to the standing committee on Oct. 28 saying the bill would lower the threshold for what qualifies as hate speech. LGB Alliance advocates for biological sex, not gender identity, as the basis for same-sex attraction—a stance that puts it at odds with people who say they are transgender.

“If Bill C-9 passes, we may end up in jail if we speak out on this issue for offending people,” Johnson said.

Lawton noted that Bill C-9 would take effect in online spaces, pointing to what the minister of justice said in committee on Oct. 9 that “the law will apply equally online and in real communities.”

“The risk is not just people who are going to be charged under Bill C-9,” Lawton said, “[but] people who are not sure if they will be, so they pre-emptively censor themselves.”

Senneker echoed this sentiment, saying the bill would likely have a “chilling effect on Christian speech throughout Canada.” Now that OnGuard Canada is asking pastors and other Christian leaders to write to their MPs about Bill C-9, Senneker expects committee members will read those statements into the official record during a filibuster after the House of Commons resumes work on Jan. 26.

Senneker said Christians should fight the bill, but not just out of concern over legal ramifications. “The biggest reason we have to organize to stop this piece of legislation is that we must defend the right to proclaim the gospel of Christ,” Senneker said. “We have an obligation to proclaim the truth, the opportunity of eternal life and the glory of Jesus Christ to our country.”